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EXHIBIT 4.8(C)
GUARANTY AGREEMENT
This GUARANTY AGREEMENT (this "Guaranty"), dated as of December 20,
1999, is made by LYNCHBURG FOUNDRY COMPANY, a corporation organized and existing
under the laws of the Commonwealth of Virginia, IRONTON IRON INC., a corporation
organized and existing under the laws of the State of Ohio, NORTHERN CASTINGS
CORPORATION, a corporation organized and existing under the laws of the State of
Georgia, INTERMET INTERNATIONAL, INC., a corporation organized and existing
under the laws of the State of Georgia, ALEXANDER CITY CASTING COMPANY, INC., a
corporation organized and existing under the laws of the State of Alabama, SUDM,
INC., a corporation organized and existing under the laws of the State of
Michigan, SUDBURY, INC., a corporation organized and existing under the laws of
the State of Delaware, COLUMBUS FOUNDRY, L.P., a limited partnership organized
and existing under the laws of the State of Delaware, TOOL PRODUCTS, INC., a
corporation organized and existing under the laws of the State of Delaware, IOWA
MOLD TOOLING, CO., INC., a corporation organized and existing under the laws of
the State of Iowa, CAST-MATIC CORPORATION, a corporation organized and existing
under the laws of the State of Michigan, XXXXXX P.M.C., INCORPORATED, a
corporation organized and existing under the laws of the State of Illinois,
XXXXXX CASTINGS COMPANY, a corporation organized and existing under the laws of
the State of Delaware, GANTON TECHNOLOGIES INC., a corporation organized and
existing under the laws of the State of Illinois, DIVERSIFIED DIEMAKERS, INC, a
corporation organized and existing under the laws of the State of Delaware,
INTERMET HOLDING COMPANY, a corporation organized and existing under the laws of
the State of Delaware and XXXXXX HAVANA, INC., a corporation organized and
existing under the laws of the State of Delaware, and the other subsidiaries of
Intermet that execute and deliver a supplement hereto from time to time (the
foregoing Persons individually a "Guarantor" and collectively the "Guarantors"),
in favor of THE BANK OF NOVA SCOTIA, a Canadian chartered bank acting through
its Atlanta Agency (in such capacity, the "Administrative Agent"), in its
capacity as administrative agent for the banks and other lending institutions
parties to the Term Loan Agreement (as hereinafter defined) and each assignee
thereof becoming a "Lender" as provided therein (the "Lenders"; the Lenders and
the Administrative Agent being collectively referred to herein as the
"Guaranteed Parties");
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W I T N E S S E T H:
WHEREAS, Intermet has requested, and the Administrative Agent and
Lenders have agreed subject to the terms and conditions of this Agreement, to
make available to Intermet a term loan facility to finance the Target
Acquisition;
WHEREAS, Intermet, the Lenders, the Administrative Agent, Bank One,
Michigan, as Syndication Agent, (the "Syndication Agent"), and SunTrust Bank,
Atlanta, as Documentation Agent (the "Documentation Agent") have entered into
that certain Term Loan Agreement dated as of December [ ], 1999 (as the same may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, and including all schedules, riders, and supplements thereto, the "Term
Loan Agreement"; terms defined therein and not otherwise defined herein being
used herein as therein defined);
WHEREAS, Intermet owns, directly or indirectly, all or a majority of
the outstanding capital stock of each of the Guarantors;
WHEREAS, Intermet and Guarantors share an identity of interest as
members of a consolidated group of companies engaged in substantially similar
businesses with Intermet providing certain centralized financial, accounting
and/or management services to each of the Guarantors;
WHEREAS, consummation of the Target Acquisition will enhance the
overall financial strength and stability of Intermet's entire corporate group,
including the Guarantors;
WHEREAS, it is a condition precedent to the Lenders' obligations to
enter into the Term Loan Agreement and to make extensions of credit thereunder
that Guarantors execute and deliver this Guaranty, and Guarantors desire to
execute and deliver this Guaranty to satisfy such condition precedent;
NOW, THEREFORE, in consideration of the premises and in order to induce
the Guaranteed Parties to enter into and perform their obligations under the
Term Loan Agreement, the Guarantors hereby jointly and severally agree as
follows:
SECTION 1. GUARANTY. The Guarantors hereby jointly and severally,
irrevocably and unconditionally, guarantee the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Loans and all
other Obligations owing by Intermet to the Lenders or the Administrative Agent,
or any of them, under the Term Loan Agreement, the Notes and the other Credit
Documents, including, without limitation, all renewals, extensions,
modifications and refinancings thereof, now or hereafter owing, whether for
principal, interest, fees, expenses or otherwise, and any and all reasonable
out-of-pocket expenses (including reasonable attorneys' fees actually incurred)
and expenses incurred by the Administrative Agent in enforcing any rights under
this Guaranty (the "Guaranteed Obligations"), including without limitation, all
interest which, but for the filing of a petition in bankruptcy with respect to
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Intermet, would accrue on any principal portion of the Guaranteed Obligations.
Any and all payments by the Guarantors hereunder shall be made free and clear of
and without deduction for any set-off, counterclaim, or withholding so that, in
each case, each Guaranteed Party will receive, after giving effect to any Taxes
(as such term is defined in the Term Loan Agreement, but excluding Taxes imposed
on overall net income of the Guaranteed Party to the same extent as excluded
pursuant to the Term Loan Agreement), the full amount that it would otherwise be
entitled to receive with respect to the Guaranteed Obligations (but without
duplication of amounts for Taxes already included in the Guaranteed
Obligations). The Guarantors acknowledge and agree that this is a guarantee of
payment when due, and not of collection, and that this Guaranty may be enforced
up to the full amount of the Guaranteed Obligations without proceeding against
Intermet, against any security for the Guaranteed Obligations, against any other
Guarantor or under any other guaranty covering any portion of the Guaranteed
Obligations.
SECTION 2. GUARANTY ABSOLUTE. The Guarantors guarantee that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Credit Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Guaranteed Party with respect thereto. The liability of each Guarantor under
this Guaranty shall be absolute and unconditional in accordance with its terms
and shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including, without limitation, the
following (whether or not such Guarantor consents thereto or has notice
thereof):
(a) any change in the time, place or manner of payment of, or
in any other term of, all or any of the Guaranteed Obligations, any
waiver, indulgence, renewal, extension, amendment or modification of,
or addition, consent or supplement to, or deletion from, or any other
action or inaction under or in respect of, the Term Loan Agreement, the
other Credit Documents, or any other documents, instruments or
agreements relating to the Guaranteed Obligations or any other
instrument or agreement referred to therein or any assignment or
transfer of any thereof;
(b) any lack of validity or enforceability of the Term Loan
Agreement, the other Credit Documents, or any other document,
instrument or agreement referred to therein or any assignment or
transfer of any thereof;
(c) any furnishing to the Guaranteed Parties of any additional
security for the Guaranteed Obligations, or any sale, exchange, release
or surrender of, or realization on, any security for the Guaranteed
Obligations;
(d) any settlement or compromise of any of the Guaranteed
Obligations, any security therefor, or any liability of any other party
with respect to the Guaranteed Obligations, or any subordination of the
payment of the Guaranteed Obligations to the payment of any other
liability of Intermet;
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(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating
to any Guarantor or Intermet, or any action taken with respect to this
Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or lien on any
collateral, or any amendment or waiver of, consent to, or departure
from, any guaranty or security for all or any of the Guaranteed
Obligations;
(g) any application of sums paid by Intermet or any other
Person with respect to the Obligations of Intermet to the Guaranteed
Parties, regardless of what Obligations of Intermet remain unpaid;
(h) any act or failure to act by any Guaranteed Party which
may adversely affect a Guarantor's subrogation rights, if any, against
Intermet to recover payments made under this Guaranty; and
(i) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Guarantor.
If claim is ever made upon any Guaranteed Party for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations, and any Guaranteed Party repays all or part of said amount by
reason of (a) any judgment, decree or order of any court or administrative body
having jurisdiction over the Guaranteed Party or any of its property, or (b) any
settlement or compromise of any such claim effected by the Guaranteed Party with
any such claimant (including Intermet or a trustee in bankruptcy for Intermet),
then and in such event the Guarantors agree that any such judgment, decree,
order, settlement or compromise shall be binding on it, notwithstanding any
revocation hereof or the cancellation of the Term Loan Agreement, the other
Credit Documents, or any other instrument evidencing any liability of Intermet,
and the Guarantors shall be and remain liable to the Guaranteed Party for the
amounts so repaid or recovered to the same extent as if such amount had never
originally been paid to the Guaranteed Party.
SECTION 3. WAIVER. The Guarantors hereby waive notice of acceptance of
this Guaranty, notice of any Obligations to which it may apply, and further
waive presentment, demand of payment, protest, notice of dishonor or nonpayment
of any such Obligations, suit or taking of other action by the Guaranteed
Parties against, and any other notice to, Intermet or any other party liable
with respect to the Guaranteed Obligations (including the Guarantors or any
other Person executing a guaranty of the obligations of Intermet).
SECTION 4. WAIVER OF SUBROGATION; CONTRIBUTION. No Guarantor will
exercise any rights against Intermet which it may acquire by way of subrogation
or contribution, by any payment made hereunder or otherwise and each of the
Guarantors hereby expressly waives any claim, right or remedy which the
Guarantors may now have or hereafter acquire against Intermet
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that arises hereunder and/or from the performance by the Guarantors hereunder,
including, without limitation, any claim, right or remedy of any Guaranteed
Party against Intermet or any security which any Guaranteed Party now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under color of law or otherwise unless and until the
Guaranteed Obligations have been indefeasibly paid in full.
In the event that any Guarantor (the "Funding Guarantor") shall make
any payment or payments under this Guaranty or shall suffer any loss as a result
of any realization upon any collateral granted by it to secure its obligations
hereunder, each other Guarantor (each, a "Contributing Guarantor") hereby agrees
to contribute to the Funding Guarantor an amount equal to such Contributing
Guarantor's pro rata share of such payment or payments made, or losses suffered,
by such Funding Guarantor determined by reference to the ratio of (a) the dollar
amount of the percentage of each such Contributing Guarantor's Net Assets
(without giving effect to any right to receive any contribution or subrogation
or obligation to make any contribution hereunder), to (b) the sum of the Net
Assets of all Guarantors (including the Funding Guarantor) hereunder (without
giving effect to any right to receive contribution or subrogation hereunder or
any obligation to make any contribution hereunder); provided, that the
Contributing Guarantor shall not be obligated to make any such payment to the
Funding Guarantor if the Contributing Guarantor is not solvent at the time of
such contribution or if the Contributing Guarantor would be rendered not solvent
as a result thereof. Nothing in this Section shall affect each Guarantor's
several liability for the entire amount of the Guaranteed Obligations, subject
only to the limitations set forth in Section 15. For the purposes of this
Section 4, (x) the "Net Assets" of any Guarantor shall mean the highest amount,
as of any Determination Date, by which (A) the aggregate present fair saleable
value of the assets of such Guarantor exceeds (B) the amount of all the debts
and liabilities of such Guarantor (including contingent, subordinated, unmatured
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder), and (y) "Determination Date" shall mean each of (1) the Closing
Date, (2) the date of commencement of a case under the Bankruptcy Code in which
a Guarantor is a debtor, and (3) the date enforcement hereunder is sought with
respect to such Guarantor. Each Funding Guarantor covenants and agrees that its
right to receive any contribution from any Contributing Guarantor hereunder
shall be subordinated and junior in right of payment in full of all of the
Guaranteed Obligations.
SECTION 5. SEVERABILITY. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by a Guarantor therefrom shall in any
event be effective unless the same shall be in writing executed by the
Administrative Agent.
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SECTION 7. NOTICES. All notices and other communications provided for
hereunder shall be given in the manner specified in the Term Loan Agreement (i)
in the case of the Administrative Agent, at the address specified for the
Administrative Agent in the Term Loan Agreement, and (ii) in the case of the
Guarantors, at the respective addresses specified for such Guarantors in this
Guaranty.
SECTION 8. NO WAIVER; REMEDIES. No failure on the part of the
Administrative Agent or other Guaranteed Parties to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. No notice to or demand on
any Guarantor in any case shall entitle such Guarantor to any other further
notice or demand in any similar or other circumstances or constitute a waiver of
the rights of the Administrative Agent or other Guaranteed Parties to any other
or further action in any circumstances without notice or demand. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 9. RIGHT OF SET OFF. In addition to and not in limitation of
all rights of offset that the Administrative Agent or other Guaranteed Parties
may have under applicable law, the Administrative Agent and the other Guaranteed
Parties shall, upon the occurrence of any Event of Default and whether or not
the Administrative Agent or other Guaranteed Parties have made any demand or the
Guaranteed Obligations are matured, have the right to appropriate and apply to
the payment of the Guaranteed Obligations, all deposits of any Guarantor
(general or special, time or demand, provisional or final) then or thereafter
held by and other indebtedness or property, then or thereafter owing by the
Administrative Agent or other Guaranteed Parties to any Guarantor, whether or
not related to this Guaranty or any transaction hereunder. The Guaranteed
Parties shall promptly notify the relevant Guarantor of any offset hereunder.
SECTION 10. CONTINUING GUARANTY; TRANSFER OF OBLIGATIONS. This Guaranty
is a continuing guaranty and shall (i) remain in full force and effect until
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the termination of the Commitments, (ii) be binding upon
each Guarantor, its successors and assigns, and (iii) inure to the benefit of
and be enforceable by the Administrative Agent, its successors, transferees and
assigns, for the benefit of the Guaranteed Parties.
SECTION 11. GOVERNING LAW; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS;
SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(a) THIS GUARANTY WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK).
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR
OTHERWISE RELATED HERETO MAY BE BROUGHT IN THE
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COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS GUARANTY,
EACH GUARANTOR HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING
ITS RIGHTS OR THE RIGHTS OF THE ADMINISTRATIVE AGENT AND OTHER GUARANTEED
PARTIES WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. EACH
GUARANTOR HEREBY IRREVOCABLY DESIGNATES THE XXXXXXXX-XXXX CORPORATION SYSTEM,
INC. AS THE DESIGNEE, APPOINTEE AND AGENT OF SUCH GUARANTOR TO RECEIVE, FOR AND
ON BEHALF OF SUCH GUARANTOR, SERVICE OR PROCESS IN SUCH JURISDICTION IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT RELATED
HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED THIRTY DAYS AFTER MAILING
THEREOF TO SAID AGENT. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON
SUCH AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF
PROCESS BY MAIL TO THE RESPECTIVE GUARANTOR AT ITS ADDRESS SET FORTH HEREIN, BUT
THE FAILURE OF SUCH GUARANTOR TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. EACH
GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS
GUARANTY OR ANY DOCUMENT RELATED THERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR
IN ANY OTHER JURISDICTION. TO THE EXTENT THAT ANY GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH
GUARANTOR HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER CREDIT
DOCUMENTS TO WHICH IT IS A PARTY.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR ANY OTHER
CREDIT DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREUNDER OR THEREUNDER.
EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
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SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER CREDIT DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR SUCH GUARANTOR ENTERING INTO THE CREDIT DOCUMENTS.
SECTION 12. SUBORDINATION OF INTERMET'S OBLIGATIONS TO THE GUARANTORS.
As an independent covenant, each Guarantor hereby expressly covenants and agrees
for the benefit of the Administrative Agent and other Guaranteed Parties that
all obligations and liabilities of Intermet to such Guarantor of whatsoever
description including, without limitation, all intercompany receivables of such
Guarantor from Intermet ("Junior Claims") shall be subordinate and junior in
right of payment to all Obligations of Intermet to the Administrative Agent and
other Guaranteed Parties under the terms of the Term Loan Agreement and the
other Credit Documents ("Senior Claims").
If an Event of Default shall occur, then, unless and until such Event
of Default shall have been cured, waived, or shall have ceased to exist, no
direct or indirect payment (in cash, property, securities, by setoff or
otherwise) shall be made by Intermet to any Guarantor on account of or in any
manner in respect of any Junior Claim except such payments and distributions the
proceeds of which shall be applied to the payment of Senior Claims.
In the event of a Proceeding (as hereinafter defined), all Senior
Claims shall first be paid in full before any direct or indirect payment or
distribution (in cash, property, securities, by setoff or otherwise) shall be
made to any Guarantor on account of or in any manner in respect of any Junior
Claim except such payments and distributions the proceeds of which shall be
applied to the payment of Senior Claims. For the purposes of the previous
sentence, "Proceeding" means Intermet or any Guarantor shall commence a
voluntary case concerning itself under the Bankruptcy Code or any other
applicable bankruptcy laws; or any involuntary case is commenced against
Intermet or any Guarantor; or a custodian (as defined in the Bankruptcy Code or
any other applicable bankruptcy laws) is appointed for, or takes charge of, all
or any substantial part of the property of Intermet or any Guarantor, or
Intermet or any Guarantor commences any other proceedings under any
reorganization arrangement, adjustment of debt, relief of debtor, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Intermet or any Guarantor, or any such
proceeding is commenced against Intermet or any Guarantor, or Intermet or any
Guarantor is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or Intermet or any
Guarantor suffers any appointment of any custodian or the like for it or any
substantial part of its property; or Intermet or any Guarantor makes a general
assignment for the benefit of creditors; or Intermet or any Guarantor shall fail
to pay, or shall state that it is unable to pay, or shall be unable to pay, its
debts generally as they become due; or Intermet or any Guarantor shall call a
meeting of its creditors with a view to arranging a composition or adjustment of
its debts; or Intermet or any Guarantor shall by any act or failure to act
indicate its consent to, approval of or acquiescence in any of the foregoing; or
any corporate action shall be taken by Intermet or any Guarantor for the purpose
of effecting any of the foregoing.
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In the event any direct or indirect payment or distribution is made to
a Guarantor in contravention of this Section 12, such payment or distribution
shall be deemed received in trust for the benefit of the Administrative Agent
and other Guaranteed Parties and shall be immediately paid over to the
Administrative Agent for application against the Guaranteed Obligations in
accordance with the terms of the Term Loan Agreement.
Each Guarantor agrees to execute such additional documents as the
Administrative Agent may reasonably request to evidence the subordination
provided for in this Section 12.
SECTION 13. JUDGMENT CURRENCY. (a) The Guarantors' obligations
hereunder to make payments in a particular currency (the "Obligation Currency")
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Guaranteed Parties of the full amount of the Obligation
Currency expressed to be payable under this Guaranty or the Term Loan Agreement.
If for the purpose of obtaining or enforcing judgment against any Guarantor in
any court or in any jurisdiction, it becomes necessary to convert into or from
any currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made, at the currency equivalent
determined, in each case, as on the Business Day immediately preceding the day
on which the judgment is given (such Business Day being hereafter referred to as
the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Guarantors covenant and agree to pay, or cause to be paid, such
additional amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
(c) For purposes of determining the currency equivalent for this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
SECTION 14. AUTOMATIC ACCELERATION IN CERTAIN EVENTS. Upon the
occurrence of an Event of Default specified in Section 8.07 of the Term Loan
Agreement, all Guaranteed Obligations shall automatically become immediately due
and payable by the Guarantors, without notice or other
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action on the part of the Administrative Agent or other Guaranteed Parties, and
regardless of whether payment of the Guaranteed Obligations by Intermet has then
been accelerated. In addition, if any event of the types described in Section
8.07 of the Term Loan Agreement should occur with respect to any Guarantor, then
the Guaranteed Obligations shall automatically become immediately due and
payable by such Guarantor, without notice or other action on the part of the
Administrative Agent or other Guaranteed Parties, and regardless of whether
payment of the Guaranteed Obligations by Intermet has then been accelerated.
SECTION 15. SAVINGS CLAUSE. (a) It is the intent of each Guarantor and
the Guaranteed Parties that each Guarantor's maximum obligations hereunder shall
be, but not in excess of:
(i) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code on or within one year from the date
on which any of the Guaranteed Obligations are incurred, the maximum
amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of such Guarantor to the Guaranteed Parties) to
be avoidable or unenforceable against such Guarantor under (A) Section
548 of the Bankruptcy Code or (B) any state fraudulent transfer or
fraudulent conveyance act or statute applied in such case or proceeding
by virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code subsequent to one year from the
date on which any of the Guaranteed Obligations are incurred, the
maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of the Guarantor to the
Guaranteed Parties) to be avoidable or unenforceable against such
Guarantor under any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the
Bankruptcy Code (including, without limitation, any other bankruptcy,
reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum
amount which would not otherwise cause the Guaranteed Obligations (or
any other obligations of such Guarantor to the Guaranteed Parties) to
be avoidable or unenforceable against such Guarantor under such law,
statute or regulation including, without limitation, any state
fraudulent transfer or fraudulent conveyance act or statute applied in
any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Guaranteed Parties) shall be determined in any such case or proceeding shall
hereinafter be referred to as the "Avoidance Provisions").
(b) To the end set forth in Section 15(a), but only to the
extent that the Guaranteed Obligations would otherwise be subject to
avoidance under the Avoidance Provisions, if such Guarantor is not
deemed to have received valuable consideration, fair value or
reasonably equivalent value for the Guaranteed Obligations, or if the
Guaranteed Obligations would render the Guarantor insolvent, or leave
the Guarantor with an
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unreasonably small capital to conduct its business, or cause the
Guarantor to have incurred debts (or to have intended to have incurred
debts) beyond its ability to pay such debts as they mature, in each
case as of the time any of the Guaranteed Obligations are deemed to
have been incurred under the Avoidance Provisions and after giving
effect to contribution as among Guarantors, the maximum Guaranteed
Obligations for which such Guarantor shall be liable hereunder shall be
reduced to that amount which, after giving effect thereto, would not
cause the Guaranteed Obligations (or any other obligations of such
Guarantor to the Guaranteed Parties), as so reduced, to be subject to
avoidance under the Avoidance Provisions. This Section 15(b) is
intended solely to preserve the rights of the Guaranteed Parties
hereunder to the maximum extent that would not cause the Guaranteed
Obligations of any Guarantor to be subject to avoidance under the
Avoidance Provisions, and neither such Guarantor nor any other Person
shall have any right or claim under this Section 15 as against the
Guaranteed Parties that would not otherwise be available to such Person
under the Avoidance Provisions.
(c) None of the provisions of this Section 15 are intended in any
manner to alter the obligations of any holder of Subordinated Debt or the rights
of the holders of "senior indebtedness" as provided by the terms of the
Subordinated Debt. Accordingly, it is the intent of each of the Guarantors that
in the event that any payment or distribution is made with respect to the
Subordinated Debt prior to the payment in full of the Guaranteed Obligations by
virtue of the provisions of this Section 15, in any case or proceeding of the
kinds described in clauses (i)-(iii) of Section 15(a), the holders of the
Subordinated Debt shall be obligated to pay or deliver such payment or
distribution to or for the benefit of the Guaranteed Parties. Furthermore, in
respect of the Avoidance Provisions, it is the intent of each Guarantor that the
subrogation rights of the holders of Subordinated Debt with respect to the
obligations of the Guarantor under this Guaranty, be subject in all respects to
the provisions of Section 15(b).
SECTION 16. INFORMATION. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of Intermet's financial
condition and assets, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Guaranteed Parties will have any duty to advise any of the Guarantors of
information known to it or any of them regarding such circumstances or risks.
SECTION 17. REPRESENTATIONS AND WARRANTIES. Each Guarantor represents
and warrants as to itself that all representations and warranties relating to it
contained in Sections 5.01 through 5.06 of the Term Loan Agreement are true and
correct.
SECTION 18. SURVIVAL OF AGREEMENT. All a, representations and
warranties made herein shall survive the execution and delivery of this Guaranty
and the Term Loan Agreement, the making of the Loans and the execution and
delivery of the Notes and the other Credit Documents.
11
12
SECTION 19. COUNTERPARTS. This Guaranty and any amendments, waivers,
consents or supplements hereto may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
SECTION 20. CURRENCY OF PAYMENT. All payments to be made by the
Guarantors hereunder shall be made in the relevant currency or currencies in
which the Guaranteed Obligations are denominated in immediately available funds.
If any Guarantor is unable for any reason to effect payment of any of the
Guaranteed Obligations in the currency in which such Guaranteed Obligations are
denominated, the Guaranteed Parties may, at their option, require such payment
to be made in the Dollar Equivalent of such currency. If in any case where any
of the Guarantors shall make any such payment in the Dollar Equivalent, the
Guarantors agree to hold the Guaranteed Parties harmless from any loss incurred
by the Lenders arising from any change in the value of Dollars in relation to
such currency between the date such payment became due and the date of payment
thereof.
SECTION 21. ADDITIONAL GUARANTORS. Upon execution and delivery by any
Subsidiary of Intermet of an instrument in the form of Annex 1, such Subsidiary
of Intermet shall become a Guarantor hereunder with the same force and effect as
if originally named a Guarantor herein (each an "Additional Guarantor"). The
execution and delivery of any such instrument shall not require the consent of
any Guarantor hereunder. The rights and obligations of each Guarantor hereunder
shall remain in full force and effect notwithstanding the addition of any
Additional Guarantor as a party to this Guaranty.
12
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IN WITNESS WHEREOF, each Guarantor and the Administrative Agent have
caused this Guaranty to be duly executed and delivered by their respective duly
authorized officers as of the date first above written.
Address for Notices: LYNCHBURG FOUNDRY COMPANY
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 -------------------------
Title: Treasurer
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: IRONTON IRON INC.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: NORTHERN CASTING CORPORATION
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: INTERMET INTERNATIONAL, INC.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: ALEXANDER CITY CASTINGS COMPANY,
-------------------- INC. ("Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
00
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: SUDM, INC.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: SUDBURY, INC.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: COLUMBUS FOUNDRY, L.P.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: TOOL PRODUCTS, INC.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: IOWA MOLD TOOLING, CO., INC.
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
00
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: CAST-MATIC CORPORATION
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: XXXXXX P.M.C., INCORPORATED
-------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: XXXXXX CASTINGS COMPANY
-------------------- (a "Guarantor")
c c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 ------------------------
Title: Treasurer
---------
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: GANTON TECHNOLOGIES INC.
------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 -------------------------
Title: Treasurer
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: DIVERSIFIED DIEMAKERS, INC.
------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
00
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 -------------------------
Title: Treasurer
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: INTERMET HOLDING COMPANY
------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 -------------------------
Title: Treasurer
Attn: Xxxxxxx X. Xxxxxxxxx
Address for Notices: XXXXXX HAVANA, INC.
------------------- (a "Guarantor")
c/o Intermet Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxx 000 By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxx, Xxxxxxxx 00000 -------------------------
Title: Treasurer
Attn: Xxxxxxx X. Xxxxxxxxx
00
XXX XXXX XX XXXX XXXXXX, as
Administrative Agent
By: /s/ F.C.H. Xxxxx
------------------------------
Title: Senior Manager Loan
Operations
18
SECTION 12 OF THE
FOREGOING GUARANTY
ACKNOWLEDGED AND
AGREED TO:
INTERMET CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Title: VP - Finance & Chief Financial Officer
